A harsh reality

A harsh reality

When a student is accused of sexual assault, IU promises an impartial review of allegations built on integrity and respect. But students who have been investigated — including those later cleared of all accusations — say this system is anything but fair.

Wednesday, Sept. 20 — This is the third in a four-part series about IU's system of sexual assault investigations. For more information about this series, click here. If you believe you have experienced sexual assault or have an ongoing case and need support, click here for a list of resources. Contact our investigations team if you have further questions or would like to share your story.

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IU’s sexual assault investigations are rigged against the accused — at least, that’s the overwhelming opinion of students accused of rape and of their lawyers.

The University denies the men accused access to evidence against them until shortly before their cases are heard. Once these cases move forward, IU’s system denies these students the ability to have a lawyer speak for them or question witnesses. It denies them the right to file counterclaims against their accusers. If the male students choose to not cooperate with the investigation — a basic right in American courts — IU punishes them by cutting off their ability to register for classes or even graduate. If they still won’t answer questions, the men know their refusal increases the likelihood that the University will conclude that they’re rapists.

IU appoints faculty and staff to preside over hearings, even though these people usually have no legal expertise and only a few days of training. Under IU rules, these hearing officers decide cases using a standard of proof that makes it much easier to rule against the men. When the hearing officers determine that students have committed rape, IU has never overturned that ruling on appeal. Sometimes the University rushes to wrap up cases before all evidence has been weighed.

In one case, a student had already been expelled, his lawyer says, when a DNA test cleared him months later. Knowing IU's track record, the attorney didn't even bother sending the University the results of the test.

“Imagine trying to tell a young man, ‘It doesn’t matter that it wasn’t your DNA',’’ said the student’s lawyer, Katharine Liell. “‘It doesn’t matter that we proved she was mistaken about who she was with that night. You’re just going to have to accept it because there’s nothing you can do unless you’re willing to go to court and sue them.’”

Liell and several other Bloomington attorneys who have represented dozens of accused students describe the University’s system as a travesty. In its attempts to be sensitive to those who have reported rape, the lawyers say, IU has lost sight of fairness to those accused.

Katharine Liell, an attorney who frequently represents men accused of rape in IU's sexual misconduct hearings, says IU's system lacks the fairness and due process rights her clients would be guaranteed in the criminal justice system.

“I’ve been so shocked by the outcomes of hearings where it was so clear to me that my client did absolutely nothing wrong,” attorney Amelia Lahn said.

Over the past year, the Indiana Daily Student has tried to talk with students about their experiences inside IU’s sexual assault hearings. Because the University’s files on these cases are closely guarded, the newspaper reached out directly to students, handing out flyers across campus and posting notices on social media.

A dozen women were willing to be interviewed. But male students, wary of the stigma that follows rape accusations, were more reluctant. Only one agreed to share his experiences with the newspaper. He did not want to be identified by his full name, even though the University dismissed the charges against him.

“I'm a political science major, and I want to go into government,” said Bill, now a 20-year-old student attending school in California. “I don't need my name anywhere near anything that says sexual assault.”

According to Bill, his case began one night last year when another freshman invited him to her room at Foster Quad to have sex. He had already been drinking when she texted him, and his friends encouraged him to go.

“Are we going to do this or what?” he said he remembered her asking when he arrived at the dorm.

Bill told her no, but the two of them shared a bottle of vodka she hid in her closet. At some point, he said he blacked out and then woke up the next morning with Plan B emergency contraception pills in his pocket, unsure of how they got there.

A few weeks later, Bill got a call from an investigator with IU’s Office of Student Ethics. The freshman from Foster had accused him of raping her when she was too drunk to consent. The University placed a hold on his student account. Bill said the investigator told him that if he didn’t cooperate, the University might rule him responsible for sexual assault.

Bill did cooperate, but he said he spent thousands of dollars to hire an attorney. He flew back from California to attend his hearing. The other student never showed. But the hearing occurred anyway. In the end, the panel ruled in Bill’s favor. Even so, he still can’t believe IU was so cavalier with his future.

“If someone has been sexually assaulted, and you can prove it, it should go to the police,” Bill said. “This is, to me, unbelievable that they’re able to have these kind of kangaroo courts where they make up their own rules and then hand down long-term, life-altering sentences.”

Bloomington attorney Joe Lozano has worked on IU cases ranging from underage drinking to sexual assault.

“When you take all of their disciplinary process as a whole, the overwhelming majority of it is fair,” Lozano said. “I have clients in some cases I tell them go there by themselves. They’ll be fine. Never on a sexual assault.”

IU officials say they are constantly refining their rules, but they point out that the hearings conducted by the Office of Student Ethics, recently renamed the Office of Student Conduct, are not the same as criminal trials.

“We try to be as fair as we possibly can with the knowledge that this is not a criminal court,” Provost Lauren Robel said. “This is an educational institution.”

Katharine Liell and Amelia Lahn, attorneys for the accused, discuss what happens to clients in the aftermath of the investigations.

‘THIS UNRAVELING OF JUSTICE’

Indiana is hardly the only school under fire. In recent years, universities across the country have been accused of being so eager to appear strong against sexual violence that they have abandoned the rights of those accused.

Just two weeks ago, the debate intensified when U.S. Education Secretary Betsy DeVos attacked the way schools investigate sexual assault.
“A failed system,” DeVos repeatedly called it in a speech at George Mason University. “This unraveling of justice is shameful.”

Critics dismissed her speech as a cynical attempt to undermine victims and protect rapists. Attorneys say this is an overreaction and that DeVos spoke in detail about how systems such as IU’s have hurt both survivors of sexual assault and young men unfairly accused.

Shortly after DeVos’ speech, IU released a statement saying the University plans to monitor changes in federal guidance but will continue with its investigations.

“At the end of the day, Title IX still says no one should be denied or excluded from participating in their education on the basis of sex, so that governs our work,” Springston said in an August interview.

Last year, more than 20 university law professors from around the country signed an open letter calling on the Department of Education to rethink its guidance for universities on how to address sexual misconduct. The professors argued that the government places such relentless pressure on universities to tackle sexual assault that some investigators have abandoned neutrality. These investigations, the professors said, stigmatizes accused students and severs their access to an education.

More than 150 lawsuits have been filed against schools in the last five years, according to Title IX For All, an advocacy group promoting gender equity in higher education.

IU is under similar scrutiny at both its Bloomington and Indianapolis campuses.

Jeremiah Marshall, expelled from IU-Purdue University Indianapolis as a sophomore, sued the University two years ago, claiming that his due process rights had been violated. According to court documents, IUPUI campus police woke Marshall at 4 a.m. and questioned him about a reported rape. That same day, Marshall was placed on interim suspension and evicted from University housing, despite having no hearing or evidence presented against him.

In another lawsuit filed last year, an unnamed freshman from the Bloomington campus echoed Marshall’s complaints. The freshman said another student accused him of rape because she was embarrassed about initiating sex with him at his dorm. His lawsuit alleged IU’s investigator only interviewed friends of his accuser and ignored evidence favorable to him. Both this case and Marshall’s case were settled in July.

A third lawsuit — this one still unfolding in court — promises to be compelling if it goes to trial. Aaron Farrer, a sophomore IU-Bloomington student who happened to serve as a police cadet, was accused in 2015 of sexually assaulting another student. The woman insisted he took advantage of her when she was drunk. Farrer told police she had seduced him in a T-shirt and red thong, repeatedly asking “Do you want to fuck me?”

Monroe County prosecutors dismissed his case. IU’s system ruled that Farrer had in fact committed rape and expelled him. Farrer’s lawsuit argues that the University has created a hostile environment for male students, disciplining them unfairly for accepting sexual advances. Farrer is seeking $75,000 and reinstatement as an IU student. He also longs to be a police cadet again. The damage to himself and his family, he says, has been irrevocable.

“When the accusation was made, I lost everything,” he wrote in a statement.

Many sexual misconduct cases filed with the Office of Student Conduct turn on the complexities of defining consent. In Indiana courts, consent is defined one way. At IU, it’s defined differently, at least when one or both of the students involved have been drinking.

That is why Aaron Farrer’s case is so complicated. Was the young woman in that case capable of giving consent? The criminal justice system had one answer. IU had another.

IU plasters flyers, like this one in Ballantine Hall, in nearly every bathroom stall on campus, reminding students of what it means to ask for and give consent. Lawyers for those accused of sexual assault in the University's system say IU's definitions of consent are too simplistic.

The University teaches students about consent from the day they arrive on campus. At orientation, freshmen are shown a musical featuring a peppy song about consent. Flyers hang in bathroom stalls in campus buildings and off-campus bars.

“It’s the responsibility of the initiator to get consent for engaging in sexual activity,” the flyers say. “Sex without consent is assault.”

As well-intended as these efforts may be, lawyers say IU’s definition paints an unrealistic picture. Liell says IU policy discriminates against men in an environment where they are more likely to make the first move.

“What is your definition of initiating?” Liell asks. “Is it holding someone’s hand? Is it the kiss?”

When both parties were drunk, reporting sexual assault can turn into a race to the Office of Student Conduct. Lawyers say they have seen administrators believe the student who reports first.

“A lot of my clients will say ‘I was drunk, too,’ but that doesn’t matter once the process has started and you’ve been accused,” said Amelia Lahn, a local lawyer who frequently represents men accused of sexual assault.

By contrast, the criminal justice system accounts for these and other ambiguities, Lahn and other lawyers said.

In the legal system, being drunk isn’t usually enough to prove a student didn’t consent to sex. A student can be blacked out but not unconscious, Lahn pointed out. What if that person is walking and communicating clearly in his or her drunken state? How can the partner know that student isn’t really consenting to sex?

“They think that’s sexual assault,” Lahn said of students who’ve said they were raped when blacked out. “That’s not by the legal standard.”

Katharine Liell, attorney for the accused, elaborates on blackouts.

Lawyers complain the hearing officers at IU who decide these cases have nowhere near enough training to truly understand these complexities.

Hearing panelists are selected from a list of more than three dozen IU employees who have completed IU’s sexual misconduct training. The University opens this training to faculty and staff across departments, with no required legal experience needed to become an eligible panelist. No continuing education, such as law school, is required. At least one panelist must be a student affairs administrator, but few panelists have legal training.

IU’s Title IX Coordinator Emily Springston described the University’s training as intensive. IU trains investigators and hearing panelists in an annual day-and-a-half-long seminar composed of in-person and online elements, she said. The University also sends staff to conferences and brings trainers to IU.

Lahn worked in IU’s Office of Student Ethics from 2012 to 2014 before opening her own law practice. Although she never sat on a sexual misconduct panel as an IU employee, she did receive the University’s sexual misconduct training. She said her experiences in law school and in IU’s training could not have been more different.

“The most obvious difference,” Lahn said, “is that you have trained jurists based on 200 years-plus of jurisprudence history making the decision in what I call ‘real court.’”

In another striking departure from criminal procedure, almost all universities, including IU, operate on a less rigorous standard of proof. In criminal court, people charged with crimes are presumed innocent until proven guilty beyond a reasonable doubt. In IU’s misconduct hearings, the University needs only to find a preponderance of evidence against the accused — enough evidence to show that it’s more likely than not that the student committed sexual violence.

Proponents of this standard argue that women are more likely to find justice in a system that requires less definitive proof to expel whoever hurt them. Defense attorneys argue that this is dangerous.

“Why would we have such a low standard of proof,” Liell asks, “when so much is on the line for these young men?”

With DeVos’ recent announcement, it’s been speculated that the Department of Education could change federal guidance recommending schools use this controversial standard, and when it comes to preponderance, IU’s own policymakers are conflicted.

At the time IU’s current sexual misconduct policy went into effect, a February 2015 University Faculty Council resolution stated, “We express our serious concern about the propriety and constitutionality of the ‘preponderance of evidence’ standard mandated by the Office of Civil Rights."

The faculty council called IU administrators to monitor changes on the federal level and suggested further review of IU’s policy after its implementation.

“I imagine if guidance changes, that’s going to be something that they’ll ask as part of a review,” Springston said, referring to the preponderance of evidence standard. “Where that lands, I don’t know, because I think you have similar disagreement within the University as you do in the public about what that standard might be.”

This is a 360-degree view of the Office of Student Conduct hearing room, where IU faculty and staff question students and witnesses in sexual assault hearings that sometimes last hours.

'IMPEDIMENT AND OBSTRUCTION'

The men’s attorneys express the same frustration with IU’s lack of transparency – students are given little or no context for the accusations brought against them until they can review the statements of their accusers and other witnesses, all of which are kept in university files. IU makes this difficult.

In criminal court, files are available for inspection from the moment a case begins. The University allows the accused and their accusers to review the evidence during a 10-day period leading up to the final hearing. Students accused of rape can go weeks or even months without fully understanding the nature of the allegations against them.

These rules make no sense, Liell argues. “Why you would have a policy of impediment and obstruction rather than a policy of ease and access to your very own record?" Liell asked, adding, "I don’t know.”

The University won’t let anyone — even the accused — make copies of these files. Students can authorize someone else to review the file, but laptops are forbidden. Lawyers representing the men say they can spend hours taking handwritten notes — hours they then charge to their clients.

Lawyers say limiting students’ access to these files disrupts the ability to submit new witnesses and request additional information, such as surveillance videos from residence halls.

Liell said the 10-day review period has led to the destruction of vital evidence. She said she has been told surveillance videos are copied-over after 30 days, while IU’s investigations can last two months or longer.

“The best evidence there is are these surveillance videos,” Liell said. “By preventing us from seeing the accusations until the report is filed, evidence is lost and destroyed.”

Springston confirmed that IU routinely copies over its surveillance videos. A few times, she said, investigators have requested the video too late. But that doesn’t mean valuable evidence has been lost.

“There’s not necessarily any evidence there in the first place,” she said.

As for the 10-day rule on allowing students to review their files, Springston said that’s “ample time.”

Men also take issue with IU’s silencing of their advisers or attorneys.

Libby Spotts, IU’s director of student conduct, said allowing attorneys or other advisers to speak on behalf of students during University hearings would disrupt the equity of the case.

“If one party decides to potentially hire an attorney — maybe a defense attorney who has experience in presenting information in a very specific way — but if one party doesn’t, and that’s not comfortable for them, or that’s not the resource that they have, that might skew, and that imbalance that we’re talking about could then become present,” Spotts said.

However, in IU’s system, where both students are entitled to a free University student advocate or confidential victim advocate, lawyers say their clients rarely have experience in the type of representation needed to convince the panel of their innocence.

“How is an 18-year old man supposed to know how to cross-examine witnesses?” Liell said. “There’s a reason why we go to law school. These are skills that take years and years of training.”

Bloomington attorney Amelia Lahn has represented several men over the years in IU's system of investigating reports of sexual misconduct. Before opening her own legal practice, Lahn worked in the University's Office of Student Ethics, recently renamed the Office of Student Conduct. While at IU, she received the school's training for sexual misconduct hearing officers. She says it's nothing like the training she received in three years of law school.

‘JUDGE, JURY AND EXECUTIONER’

Students found responsible under IU’s system have little hope of appeal. Springston said no findings of responsibility have been overturned through the University's appeals process, overseen by the dean of students.

Lahn said she almost always appeals but has never won. “It makes me wonder how closely they look at it, or if it really is a real appeal, or if it’s just like, 'Eh, he was already found responsible. There was a finding. He did it. The end.’”

Attorney Mary Higdon echoed Lahn’s sentiment.

“We’ve lost every single one,” Higdon said. “It doesn’t seem to be taken seriously at all. It honestly seems like as soon as the accusation is made, the nail is pigeon-holed and not given a fair shake.”

Attorneys say IU rushes cases, concluding before all evidence is available. Appeals are allowed only within five days of the University hearing and can only be filed on grounds that there has been an error in IU’s procedure or that the punishment doesn’t fit the violation. Most appeals don’t meet the standard, Springston said.

“It would not be helpful if you saw a lot of cases overturned,” Springston said. "That would indicate that the system didn’t work."

The University can review new evidence after the appeals window closes, Springston said. But lawyers say this doesn't account for the time their clients spend suspended or expelled while awaiting the results of DNA testing that could potentially clear their name.

In one case, Liell said a man she represented had already been expelled even though IU knew a rape kit was being tested — a process that can take months longer than the University's investigations. When the results of this evidence came back proving her client innocent, Liell said, she didn't even bother to contact IU, wary that whoever heard the appeal at the University would not have the training to correctly interpret the results.

"It's not a simple analysis," Liell said in a text message. "If it were a jury trial we could have experts explain and educate the jury which usually takes days. How do you present that evidence in a letter? You can't."

In such cases, attorneys take issue with IU’s involvement as appeals officers. IU employees control the investigation, hearing, sanctions and appeals.
“Remember the old saying, ‘judge, jury and executioner’?” Liell said. “That’s Indiana University.”

Amelia Lahn, attorney who has represented the accused, describes some of the parts of the IU system she believes are unfair.

'DRAGGED THROUGH THE MUD'

In his case, Bill says the Office of Student Conduct showed preferential treatment toward the woman who reported him. When he asked if he could file his own report of sexual assault — after all, Bill says the girl made advances toward him before he blacked out — the University told him it doesn’t accept counterclaims.

Counterclaims are a newer phenomenon in sexual misconduct reporting, Springston said, and when an investigation is opened at IU, investigators look at both sides. In rare cases, it’s possible for a reporting student to be the one charged with sexual misconduct.

Six months after Bill received his first call from the Office of Student Conduct, he was given a hearing date. He was taking classes in California at the time and flew back to Indiana to attend in person.

While IU requires any student accused of sexual assault to appear in person or via Skype at the hearing, reporting students can choose not to participate. The woman who reported Bill didn’t show.

With the woman absent from the hearing, Bill answered the panelists’ questions, some of which he said were leading. Most lawyers would have advised him to stay quiet.

Bill was found not responsible of sexual assault, but that hasn’t dampened his outrage. He knows there will always be a file in the Office of Student Conduct alleging he committed rape.

“I got dragged through the mud,” he said. “I had this hanging over me that no matter how guilty or not guilty I might be, I, on a piece of paper somewhere, would be branded a sexual predator. No matter what I do in my life, there's always going to be that piece of paper that says that I did that, even when I completely didn't.”